February 2012 Archives

Few ethical issues involving attorneys find their way into the case law more frequently that what you're supposed to do when your client wants to withdraw a plea, and you don't think he should. Interestingly, the courts don't find that a problem at all, as the 8th demonstrated last week in State v. Jones. But the decision may have pointed to a new line of attack for appeals on this issue.

Timing is everything, the comedians tell us, and William Newrones and Anthony Walker can vouch for that. Newrones finds out that he's too early, and Walker learns he's too late. Besides time-keeping, we learn a little bit about shoplifting and counterfeit money. Good week for us, bad week for defendants: even the City of Cleveland wins an affirmance, and I'd have to check, but I don't think that's happened since Monica Lewinsky got that dress cleaned.

Most of the talk about SCOTUS last week centered on the oral argument in United States v. Alvarez, involving Alvarez's prosecution under the Stolen Valor Act, a law Congress passed in 2005 making it a crime to falsely claim that you've received a military commendation. Alvarez, obviously subscribing to the theory, "go big or go home," told a meeting of his government agency in 2007 that he'd won the Congressional Medal of Honor, a neat trick considering he'd never served a day in the military. Alvarez is hanging is hat on the notion that even false speech falls within the protections of the First Amendment, something the Court is probably reluctant to hold, but then again, criminalizing speech without proof that it does any harm -- as opposed to the situation with, for example, fraud -- might be a bridge too far. The Court's been quite willing as of late to toss out laws that imposed any limits on speech; two years ago, they struck down a Federal law prohibiting animal cruelty videos, and last year California's law banning violent video games sales to minors got kicked to the curb. There are some cases that go very far in defining what we mean by freedom of religion or the right to bear arms, and it looks like Alvarez might do the same for freedom of speech.

Another case, Blueford v. Arkansas, concerned double jeopardy, but with a set of facts that make a broadly applicable decision unlikely. The foreman in Blueford's jury announced that the jury had acquitted Blueford of capital and first degree murder, but had deadlocked on the lesser charges. The partial verdict was never recorded, and the arguments revolved around the oddities of Arkansas procedure and whether the announcement was entitled to any double jeopardy significance. The only decision by the Court last week was Messerschmidt v. Millender, a §1983 suit involving the question police officers were entitled to qualified immunity on a search that went bad. Although back in 2004 in Groh v. Ramirez, the Court held that a warrant was so "obviously deficient" that it could not save the officers from civil liability, they came to the opposite result in Messerschmidt, and the opinion and lineup of justices on this issue -- the opinion was 6-3, and only two justices fully dissented -- suggests that any plaintiff seeking to hold the police liable for a seach where they obtained a warrant is going to have an exceedingly hard road.

Down in Columbus, bad news for Beastie Boys fans, both of them, comes in State v. Carrick. Carrick had a Halloween party in 2009, and, being the caring sort, decided to share by cranking up the bass so that it rattled the windows of his neighbors, a quarter mile away. When two visits by the police didn't provide sufficient dissuasion, a third resulted in Carrick's arrest for disorderly conduct. The court finds that the "making unreasonable noise" provision of the disorderly conduct statute is not void for vagueness, and upholds Carrick's conviction. The opinion tells us that the neighbors could distinctly hear the songs that were being played, but doesn't tell us what they are. Largely unnecessary; the likelihood that your neighbors will complain about your music geometrically increase if it's something by Megadeth or Twisted Sister, instead of "Layla" or "Stairway to Heaven." If that's the case, while I'm certainly no fan of vigilantism, it might have been appropriate here.

Williams v. Ormsby won't supply the plotline for the next rom-com. Williams and Ormsby have an off-again on-again relationship, the last episode of which features her moving back into his house with an agreement that she'd get half the house in the event of a split. No one saw that split coming, of course, but when it did, the inevitable lawsuit wound up in the Supreme Court, which decided that the agreement was invalid because love and affection alone are insufficient consideration for a contract. Good thing the court waited until the week after Valentine's Day to issue that opinion.

Catch-22 is one of the most famous books of the last century. It used World War II as a backdrop for a satire on the inanity of how governments and bureaucracies operate, and the reasoning, or lack of it, which goes into that. Everybody remembers the Catch-22 that is the focal point of the book -- the rule that anyone seeking a psych evaluation to determine that he's not sane enough to fly combat missions is trying to escape danger, and thereby demonstrates he's sane -- but there are others. In fact, the main character comes to realize that Catch-22 doesn't actually exist, but because it doesn't, it can't be repealed, either.

I sometimes do work with an attorney who has one of the most unusual ways of practicing criminal law. Most of us take a reactive posture: we respond to what the State does. We look at their case and figure out the weaknesses, and how we can attack it. As I've said before, defense lawyers rarely win cases by putting evidence in; we win cases by trashing the State's evidence, or by keeping evidence out.

My friend doesn't believe that. He approaches a criminal case like a plaintiff's lawyer in civil case: he figures out what he wants to prove, and then assembles the evidence to prove it. He'll file motions with forty or fifty pages of supporting documents. One time, he felt he needed to prove that his client had been living at a particular address for a number of years, so he got copies of the last nine White Pages and had them carted up to the judge's chambers. His approach is to beat the prosecutor into submission, and it works much more often than not. He's gotten some really good results for his clients.

And the client pays for that. Boy, does the client pay. You want a Cadillac defense, you're going to pay for a Cadillac defense.

But here's the question: are you still entitled to a Cadillac defense if you only pay for a Corolla?

The right to counsel is probably the cornerstone of our concept of due process. The government won't buy you a car, but if you get in trouble, it'll pay for an attorney -- not much, mind you -- to make sure you have one. If a judge screws up your confrontation rights, or just about any other one, the court will consider whether it affected the trial. If you don't have a lawyer when you should, though, that comes back automatically; it's structural error.

That's a recognition of the importance that a lawyer plays in a criminal case. That's not just a factor of money, although anyone familiar with the American justice system would readily agree that the man who said money can't buy happiness never sat in a courtroom. There's a wide variety of skills among lawyers at all levels: appointed or retained, young or old, male or female, black or white, defense lawyer or prosecutor. And the difference in those skills sometimes means the difference between victory and defeat. Not always; facts are facts and laws are laws, and if both weigh predominantly in favor of one side, there's not much anybody can do about it. But at the margins, yes, it makes a big difference.

Last week I might have taken an unfair shot at a lawyer, and a couple of weeks ago I missed an opportunity to congratulate a lawyer for a job well done, so today I'm going to make amends.

SCOTUS resumes oral arguments this week, but the big news on the Federal court front, at least here, was a district court judge's grant of a new trial motion in the case of Antun Lewis, who'd been convicted last year of the arson death of nine people, eight of them children, in a 2005 fire on Cleveland's east side. The 95-page opinion, which you can read here, savages the prosecution's case, which was based almost entirely on the testimony of jailhouse snitches who claimed that Lewis had confessed to them. Under Ohio law, a jury is advised to treat an accomplice's testimony with "grave suspicion." Given that snitches are the leading cause of wrongful convictions in U.S. capital cases, according to a study done by Northwestern University, it is well past time to extend that same jury advisement to them. One more thing about the case: for those of you concerned about the "Federalization" of criminal law and wondering how this wound up in Federal, rather than state, court -- as a death penalty prosecution, no less (the judge had earlier determined that Lewis wasn't eligible for execution because he was mentally retarded) -- the government acquired jurisdiction over it because the person renting the house that was set on fire received a Section 8 subsidy, and prosecutors claimed this involved the house in interstate commerce. Maybe we ought to pass a law about that sort of nonsense, too.

A couple of decisions from the Ohio Supreme Court this past week, on civil cases. Sampson v. CMHA involved an intentional tort action by Sampson, an employee of CMHA who sued the agency for malicious prosecution. The lower courts had rejected CMHA's claim of sovereign immunity, based on the provision of RC 2944.09(B) which allows suits by employees against a political subdivision if the suit arises out of the employment relationship. CMHA made a clever argument: in its earliest cases creating a right of an employee to sue an employer for intentional tort, the Supreme Court had held that such torts did not arise from the employment relationship. The reason for that was clear: if it did arise from the employment relationship, suit would be barred by the workers' compensation law. Clever, but not clever enough; the court refuses to import the law from the intentional-tort cases into the law on sovereign immunity. The only remaining question is whether the tort did indeed arise out of the employment relationship, and the court holds it did.

Tort reform has been an ongoing battle in Ohio for the past twenty years. The first two efforts by the legislature in the 90's were rejected by the Supreme Court, but that was then and this is now. The latest effort, in 2005, has been affirmed in its various particulars -- caps on damages, modifications to joint liability, major limitations on employer intentional torts -- by previous decisions. (Arbino v. Johnson, the main one upholding the law, discussed here; Kaminski v. Wire Products, upholding restrictions on employer intentional torts, discussed here.)

The latest, Havel v. Villa St. Joseph, makes the victory of the tort reform proponents, mainly businesses and insurance companies, complete. Part of the 2005 tort reform act required bifurcation of any claim for punitive damages. For obvious reasons, plaintiffs liked the law and defendants did not: a jury might be more generous with compensatory damages, and more likely to find against the defendant in the first place, if it heard evidence of the egregiousness of defendant's conduct. With bifurcation, evidence of that conduct will be reserved for a second trial, if there is one. The 8th District had held this was impermissible because it conflicted with CivR 42(B), which gives a trial court discretion on bifurcating damage claims; under Ohio law, if a statute conflicts with a rule, the rule governs. But not if the statute creates a "substantive" right, and the Supreme Court holds that it did so here, looking to the uncodified language of the statute -- the sections that the legislature tacks on to the end of an act, declaring its intent. The bottom line is that when a statute and a rule conflict, "the statute will prevail in matters of substantive law and the rule will prevail in matters of procedural law."

The 8th District usually hands down anywhere from six to twelve criminal decisions a week. Sometimes, one or more have a significant impact. Sometimes not. This week not. Still, there are some things we learn.

Like maybe drug dealing isn't as remunerative as it's cracked up to be.

I hate it when my client, a 19-year-old kid who dropped out of high school in the 10th grade, is the smartest guy in the room.

So here's the situation with Deron. One night back in July of 2010, some guy we'll call Jack was standing on his treelawn talking to a couple of buddies, when, he claims, Deron rode up on a bike, said to Jack, "Do we have a problem?" and promptly pulled out a gun. Jack had his own, it turns out, and was quicker on the draw, getting off five shots. Deron took off running, then, again according to Jack, turned and got off a couple of shots of his own.

So much for the notion that a well-armed society is a polite society, I suppose... Deron got picked up a while later, and, since he was 17 at the time, wound up in juvenile court. He was subject to a bindover, but the prosecution was willing to make him a deal: two years in a youth camp. He turned it down.

I don't care who it is, there's never been a trial lawyer who's lost a case and didn't think, "What if I'd done this instead? What if I'd asked this question, or not asked this one? What if I'd made this argument?" Any contest invites second-guessing by the loser.

For the most part, the questions are unanswerable. It's not like there's another trial taking place simultaneously, where the other lawyer is doing the things that you don't, and not doing the things that you do, and you can compare the outcomes and see how they were affected by the lawyers' tactical and strategic decisions.

But what if there were? That's what happened in a couple of cases out of the 11th District on Monday, and the outcomes couldn't have been more different, and couldn't have been more dependent on the lawyers' decisions.

Robert Bonness thought he'd hit paydirt. He saw an anonymous internet posting from someone claiming to be the father of a 12-year-old girl who could do things "that might interest that special person." Bonness responded, and the two exchanged increasingly graphic emails over several months, with Bonness seeking reassurance that the girl would be a willing participant, even actually speaking to her at one point. Bonness arranged to meet father and daughter at a hotel room, and at the designated time, drove there with an assortment of condoms, lubricants, and vibrators.

And he was careful; a retired cop -- he used his badge number as part of his email address -- he was familiar with police surveillance techniques, and he drove through the parking lot a couple of times to make sure that he wasn't being set up. He apparently wasn't familiar enough with surveillance techniques, because there was no father or 12-year-old girl, just plenty of police. (No, I don't know how the police found a detective who could mimic a 12-year-old on the phone, but they did.) Bonness broke down when arrested, and confessed to having child porn on a computer at home. He did, 94 files of them, including one which showed "a child being digitally and anally penetrated, forced to perform oral sex, defecated upon, handcuffed, and restrained in a dog kennel."

He pled guilty to attempted rape and eight counts of pandering sexually-oriented material involving a minor, all second-degree felonies. The judge maxed him on the attempted rape, gave him five years on each of the pandering charges, and ran them all consecutively; combined with a couple other charges, the total tab came to 52½ years.

A couple of years back, I had a pretrial scheduled in a case, but there was a water main break downtown, and they shut down the Justice Center for the day. Still, I wasn't surprised when I got a call the next day from my client, who'd checked the docket on the computer and seen that the pretrial had been "continued at defendant's request."

That's standard practice up here: the first thing any bailiff learns is that any court date after the first pretrial is to be marked that way. The reason, as the defendant in the 8th District's decision in State v. Hemingway found out last week, is that this keeps speedy trial time from ever running: it's tolled for the period of any continuance requested by the defendant.

The big news on the SCOTUS front was the possibility that it will be reviewing the 9th Circuit's decision last week striking down Proposition 8, the California ballot initiative that had banned gay marriage. Despite the common perception that the decision created a federal constitutional right for gays to marry, it didn't; it held that the ballot initiative was impermissibly discriminatory in that it had specifically targeted gays, relying primarily on the Supreme Court's 1996 decision in Romer v. Evans, which had used the same reasoning to strike down a Colorado constitutional amendment which barred laws protecting gays from employment discrimination. Don't be surprised if the Supreme Court doesn't grant review: Kennedy wrote the opinion in Romer, and also the opinion in Lawrence v. Texas, striking down Texas' sodomy laws, and the four conservatives on the Court, whatever their passion for slapping down the 9th Circuit, might decide that this isn't the hill they want to die on. What's more, this isn't necessarily the last word from the 9th Circuit. There was a vigorous dissent to the decision, and en banc review is quite possible.

The justices resume oral arguments on Tuesday, after the holiday, but get together this Friday for a conference to review pending cert petitions. One of them is Chaidez v. United States, which raises the question of whether Padilla v. Kentucky should be applied retroactively. Padilla (discussed here) held that an attorney had provided deficient performance by telling his client, a non-citizen, that he wouldn't be deported, when the law clearly mandated that he would be. I really don't see the Court agreeing to hear this, and allowing anybody who was convicted before Padilla came out to now raise it. Talk about opening the floodgates of litigation...

The floodgates of opinions down in Columbus remained firmly shut; nothing but Case Announcements, such as one denying a motion to supplement the record, or terminating probation in a disciplinary case, or -- and here's a biggie -- ordering counsel to "redact personal identifiers contained in the attachments to relator's motion to hold respondent in contempt." Then again, the Supreme Court has always (rightfully) regarded its job as clarifying the law, and maybe they've decided the law is clear enough for now.

The courts of appeals don't have that luxury, so let's take a look at what they've been doing.

As the unnumbered hordes of my regular readers know, this blog generally concentrates on criminal law, at the state level, and with a slight focus on Cuyahoga County. Normally, the decisions of import in that area come out of the 8th District. The most significant decisions this week, though, came from an unexpected quarter: the Federal District Court. One of them we'll talk about later; today, we'll concentrate on Donaldson v. Reid.

In the afermath of the 9/11 attacks,and the number crimes for which an alien resident could be deported was substantially increased. Immigration enforcement was much more stringent and the result was people who'd pled guilty to seemingly inconsequential crimes were suddenly facing deportation. There was a time when the 8th District was very friendly to non-citizen defendants seeking to vacate pleas because those convictions now placed them in peril of being removed from the country. Typical of those days was State v. Kiss, where the court reversed a judge's denial of a motion to vacate a plea that had been entered 48 years earlier, saying that the "strong policy preference" expressed in RC 2943.031, which mandates warnings to non-citizens about the immigration consequences of a plea, required a hearing, even though the legislature hadn't gotten around to expressing that "strong policy preference" until nearly 30 years after Kiss entered his plea.

The 8th's done an about-face on that issue, coinciding, rather curiously, with the Supreme Court's decision in Padilla v. Kentucky(discussed here), which upheld an ineffective assistance of counsel challenge by a non-citizen defendant whose lawyer had misadvised him of the consequences of his plea. The difference, of course, is that Kentucky had no similar statute, and it's hard for an Ohio defendant to argue that he wasn't advised of the immigration ramifications of his plea when the judge reads him the statutory warning.

But just how far does that warning go in curing problems of ineffective assistance?

I've lavished praise on the 8th District for its place as the most defendant-friendly 4th Amendment court in the state, if not the country. A couple of decisions last week show that the court seems to be adopting a broad interpretation of the rights provided by the 5th and 6th Amendments as well.

The 8th District's opinion in State v. Masci begins by telling us that "on November 16, 2010, the victim met with his former girlfriend at the home of a mutual acquaintance for a night of drinking and partying." The opinion warns us that "trial testimony of the circumstances leading up to the incident is both conflicting and convoluted," as might be expected in a case in which virtually every witness was suffering from some degree of intoxication. (Especially the victim: the court misplaces a decimal and tells us that his BAC reading was 2.78, about seven times the level necessary to make someone dead.) The panel wades through it all, concluding that it's just enough to convict Masci of felonious assault for running over the victim in his Blazer, the decision mainly serving to remind us how few times we see an opinion in a criminal case beginning with something like, "on November 16, 2010, the victim, his former girlfriend, and a mutual acquaintance attended a church social." I'm just sayin'.

The Supreme Court's in winter recess, but that didn't stop the decision-making process; shown here is Justice Sonia Sotoyamor's appearance two weeks ago on "Sesame Street," in which she was called upon to adjudicate the case of Baby Bear v. Goldilocks. (No, I'm not making this up.) Sotomayor rejected Baby Bear's claim to damages for Goldilock's breaking his chair, suggesting as a resolution that the two try to repair the chair. Scalia filed a biting dissent, contending that Sotomayor's decision spurned the concept of property rights, which the Framers had found so central to any concept of "ordered liberty." (Yes, I am making that part up.) The smart money has the Court denying certiorari to Red Riding Hood's claim against the Big Bad Wolf for damages caused by the apparent disappearance of her grandmother, an incident which formed the basis for a recent episode of "Law and Order: Special Victims Unit." (That too.)

The Court's recess ends with a conference on February 17, with oral arguments resuming the following week. Not much on the agenda by way of criminal cases; other than a habeas case involving the statute of limitations for such actions, the only other one on the docket this month is a case involving the "Stolen Valor Act," a recent law passed to prevent people from falsely claiming they'd won military medals, with the issue being whether the law violates the First Amendment.

The Ohio Supreme Court gets the jump on its Federal counterparts, resuming oral arguments this week, with all eyes focused on Rumpke Sanitary Landfill, Inc. v. Colerain Township, which seeks to resolve the issue of whether a private sanitary landfill is a public utility. Kidding aside, there is one civil case of significant interest next week, Burlingame v. Coombs, which addresses sovereign immunity, specifically, whether the failure of a firetruck driver to comply with the city's official policy on responding to emergencies can be considered in deciding whether he engaged in "willful or wanton" misconduct so as to make the municipality liable. The only criminal case presents a question of whether a judge can immediately grant a motion to seal the records of a case where the defendant has completed treatment in lieu of conviction, or if he has to wait the three years normally required for expungement of a conviction.

There are two basic approaches to writing an appellate brief. One is to winnow down the issues to those you believe have some reasonable chance of success. The other is throw every possible allegation in there, hoping that one will stick. I've always been an advocate of the first approach, and I've gotten feedback from appellate law clerks and even judges that the second approach is frowned upon. But several lawyers have been quite successful doing it, and there's no empirical evidence I know of to support either method.

One of the problems with the second approach is that it makes my job harder, because the resulting opinions are usually much longer, as evidenced by the 8th District's decision a couple weeks back in State v. Bolton, which addressed XIV -- whoops, fourteen -- assignments of error and clocked in at a healthy 43 pages. But it also sometimes results in a legitimate issue getting buried, and that's what might have happened in Bolton.

The Ohio Supreme Court's decision two weeks ago in State v. Gould could've been so much more. As I explained when I blogged about the oral argument in the case, Gould represented the prosecutors' Big New Idea about search and seizure law. Their argument was that the U.S. Supreme Court's decision in Herring v. US (discussed here) had created a good-faith exception to the exclusionary rule for warrantless searches: the search couldn't be tossed unless the police conduct involved a "deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights." (The good-faith exception for searches with a warrant had been established in 1984 by US v. Leon.)

As I explained in the earlier post, there's not much to the argument. The best indication that Herring wasn't intended to introduce a new rule is that just a few months later, in Arizona v. Gant, the Supreme Court threw out a car search incident to an arrest -- and reversed a 28-year-old precedent in the process -- without mentioning anything about a new test for warrantless searches. But the State plodded on, and the Supreme Court accepted the case to review that precise question.